Citation Nr: 1552775
Decision Date: 12/17/15 Archive Date: 12/23/15
DOCKET NO. 14-11 095A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin
THE ISSUES
1. Entitlement to an initial disability evaluation in excess of 10 percent for ischemic heart disease, status post coronary artery bypass graft.
2. Entitlement to an initial compensable disability evaluation for sensory neuropathy of the cutaneous branch of the right saphenous nerve.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. L. Marcum, Associate Counsel
INTRODUCTION
The Veteran served on active duty from August 1963 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2011, December 2011, and June 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.
The issues of entitlement to an effective date earlier than February 28, 2002, for the assignment of a 10 percent disability rating for service-connected ischemic heart disease, and entitlement to an effective date earlier than January 12, 2012, for the assignment of a noncompensable disability rating for service-connected sensory neuropathy of the cutaneous branch of the right saphenous nerve, have been raised by the record in a March 2015 statement from the Veteran's representative, but have not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action. 38 C.F.R. § 19.9(b) (2015).
Additionally, on his substantive appeal to the Board, the Veteran mentioned that he had a right knee replacement at a VA Medical Center. However, his statement was unclear about whether he intended to file a claim seeking entitlement to service connection for a right knee replacement. In a March 2015 deferred rating action, the RO indicated that the Veteran needed to be contacted to clarify his intentions regarding his right knee replacement. However, no further action has been taken. Therefore, the RO must take appropriate action to determine whether the Veteran intends to file a claim of entitlement to service connection for a right knee replacement.
REMAND
Review of the claims file reveals that VA has a further duty to assist the Veteran in developing evidence pertinent to his claims herein. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015).
In March 2015, the Veteran submitted a statement indicating that "my leg is worse now [and] I have high blood pressure and nothing is going to get better." Subsequently, the Veteran's representative submitted an appellate brief, wherein the representative noted that the Veteran's ischemic heart disease was last evaluated in October 2012, over three years ago. The representative asserted that the Veteran's service-connected ischemic heart disease had worsened and that it now impacted his ability to work and walk for any extended distance. Similarly, the representative noted that the Veteran's peripheral nerves were last examined in March 2012, almost four years ago. The representative asserted that the Veteran's sensory neuropathy of the cutaneous branch of the right saphenous nerve was worse than it was when originally rated.
Because the Veteran and his representative are competent to observe a worsening of symptoms, the RO must schedule the Veteran for an updated examination to determine the current severity of his service-connected ischemic heart disease, status post coronary artery bypass graft, as well as his service-connected sensory neuropathy of the cutaneous branch of the right saphenous nerve. See 38 C.F.R. § 3.159(c)(4)(i) (2015); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (indicating that a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination).
Accordingly, the case is remanded for the following actions:
1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include from all VA and non-VA medical providers who have treated him for his ischemic heart disease, status post
coronary artery bypass graft, and his sensory neuropathy of the cutaneous branch of the right saphenous nerve.
Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received.
All attempts to secure this evidence must be documented in the electronic claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claims; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond.
2. Thereafter, the Veteran must be afforded an appropriate examination to determine the current degree of severity of his service-connected ischemic heart disease, status post coronary artery bypass graft. The electronic claims file and all pertinent records must be made available to the examiner, and the examiner must
specify in the examination report that these records have been reviewed.
The examiner must perform any tests or studies deemed necessary for accurate and current assessment. The examiner must address the Veteran's current metabolic equivalents (METs) workload and whether symptoms of dyspnea, fatigue, angina, dizziness, and syncope are present. The examiner must indicate whether there is any evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or x-ray. If there is left ventricular dysfunction, the examiner must provide the ejection fraction.
3. The Veteran must also be afforded an appropriate examination to determine the current degree of severity of his service-connected sensory neuropathy of the cutaneous branch of the right saphenous nerve. The electronic claims file and all pertinent records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed.
All indicated tests and studies must be conducted and clinical findings should be reported in detail. The examiner must indicate whether the Veteran has paralysis of the saphenous nerve and if any paralysis is mild to moderate or severe to complete. The examiner must indicate whether the Veteran has any limitation of motion of his right leg due to his neuritis or neuralgia. The examiner must also note any further limitations due to pain on motion, weakness, excess fatigability, and/or
incoordination associated with the service-connected disorder and to what extent the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use.
4. The RO must notify the Veteran that it is his responsibility to report for all examinations scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's electronic claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's electronic claims file demonstrating any notice that was sent was returned as undeliverable.
5. The examination reports must be reviewed to ensure that they are in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures.
6. After completing the above actions, and any other development indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims on appeal must be readjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.
No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999).
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JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).